In Moran v. Redford Union School District, the United States District Court for the Eastern District of Michigan recently held that an employee with a history of absenteeism who requested FMLA leave but took a vacation in Florida was not retaliated against in violation of the FMLA when she was terminated for refusing to sign a last chance agreement.

The plaintiff became employed by the School District as a part-time bus driver beginning in 2001. She was subject to a collective bargaining agreement, which provided that part-time bus drivers were entitled to five days of paid leave per year. She had a history of absenteeism and related warnings. On March 10, 2008, she received a verbal warning for absenteeism. In the disciplinary meeting, she requested to take two days of leave on March 30, 2008 and April 1, 2008 to travel to Florida using airline tickets that she had previously purchased. Her request was denied.

A few days later, the plaintiff had an appointment with her physician, who diagnosed her with acute situational anxiety based primarily upon her complaints of work-related stress. He provided her with a note indicating that she could not work from March 17, 2008 through April 7, 2008. She requested a leave of absence premised upon her physician's note, and did not report to work during that time frame. From March 20, 2008 through April 1, 2008, she traveled to Florida.

Suspecting that the plaintiff fabricated her leave request to enable her to travel to Florida, the School District attempted to contact her at home on several occasions during her leave and she did not return any messages. Upon her return from Florida, she was suspended pending an investigation into the reason for her absence. The union attempted to negotiate a last chance agreement, whereby the plaintiff would be reinstated and agree, among other things, that any further absences would result in termination, and she would forgo any grievance in the event of her termination. The plaintiff refused to sign the agreement and was terminated.

The School District argued that the plaintiff did not engage in statutorily protected activity under the FMLA because she fabricated her alleged need for leave, and that it had a legitimate non-discriminatory reason for terminating her--i.e. her failure to sign the last chance agreement.

While the Court held that a jury could find that there was nothing plainly inconsistent about traveling to Florida while suffering from acute situational anxiety (some might disagree), it held that the School District had an honest belief that the plaintiff has misused her FMLA leave, and its termination of the plaintiff for failing to sign a last chance agreement was not a pretext for discrimination.

This case provides significant guidance to employers who are contemplating disciplining employees whom they suspect of misusing FMLA leave. It also suggests that last chance agreements may be a viable option where an employee has a history of absenteeism and the employer has an honest belief that the employee has misused FMLA leave.

Employers should consult their counsel when evaluating whether to discipline an employee for suspected misuse of FMLA leave.

An employer client recently told me that the company was poised to terminate an employee for a serious violation of one of the company's policies, when the employee's spouse called the employer and advised that his wife was being checked into a drug rehabilitation facility. Should the employer move forward with the termination, or wait until the employee completes rehabilitation, returns to work, and then terminate her?

Of course, the company was concerned about the well-being of its employee, but it also knew that it would be delaying the inevitable if it were to wait to terminate the employee. Also, it knew that, by waiting, it might later run the risk should the employee dispute her termination that the termination would appear to be fabricated and a pretext for retaliation.

In this scenario, the employer could be damned if it did, and damned if it didn't. The FMLA does not preclude an employer from terminating an employee on FMLA leave who would have been terminated regardless of her FMLA leave status. However, if the company terminated the employee on the heels of her request for FMLA leave, she still might be able to claim interference with her FMLA rights and/or retaliation. If the company terminated her following her FMLA leave, she also could claim retaliation. What should an employer do in this situation?

1. Ensure that the reason for termination is as iron-clad as possible. The company should confirm that the conduct in question contravenes its policies, and evaluate what it has done in the past when faced with similar violations. In this case, the company had terminated another employee (who had not requested FMLA leave) recently for the same violation. Evidence that other employees who did not request FMLA were treated the same is very helpful in defending against potential FMLA claims. Of course, if other employees who engaged in similar conduct had simply received a "slap on the wrist," the company would need to reevaluate why it was moving forward with termination in this instance.

2. Document, document, document. Document the policy violation clearly as soon as it occurs. If the company decides to move forward with the termination now, the company should send a termination letter to the employee detailing the reason for the termination.

3. Be decent. We hear so often from laid off employees and jurors alike that they want to punish the employer in question because the termination was communicated in a nasty, impersonal way. The scenario described above presents a difficult dilemma, because the employee is not available to talk now, but the company does not necessarily want to postpone the termination. The company could send a termination letter, but ask in the letter that the employee let them know when the employee is available to discuss the decision, and then follow up to discuss the termination with the employee. In addition, the company could send its assurances to the employee that it would continue to cover her under its health insurance plan, if feasible and permitted under the health plan, for the remainder of the month. (In the scenario above, under the employer's health insurance plan the employee's coverage would not terminate until the end of the month). Another alternative is offering the employee some severance, or payment for a period of time of premiums for health insurance continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), in exchange for the employee signing a release of any claims against the company.

Whether the timing is right requires an individualized analysis. By following the tenets above, employers should be able to reduce the risk that they will be sued for violating the FMLA.

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